They are discussing a lengthy article by Margaret Lewis on this same reform process. Intro (Ms Lewis), first response, second response and reply.

Favourite quote, from Nigel Li (the first responder):

The common thread of several efficiency-driven procedures is to retain the dominance of the prosecutions power in the criminal justice system. In a nutshell, introducing the adversarial system is a part of the serious judicial reform to redefine the powers and functions of the court. The judiciary is to recover its domain originally reserved under the Constitution but once wrested away by the executive branch via the over-expanded functions of the prosecution.

Overall, all parties to the discussion agree that the prosecutorial system fails to protect fundamental human rights, particularly in pre-trial procedures where defendants are rarely represented and which are not ‘hearings’ in any common law sense of the word.

Some more excerpts by way of summary:

By way of brief background, over the past twenty years, Taiwan has transformed from a repressive, martial law state into a vibrant, multi-party democracy, and wide-sweeping reforms to the legal system have accompanied these political changes. Prior to the current reform project, the criminal justice system had a strong inquisitorial flavor. What Taiwan chose to adopt at the turn of the century is what they call a reformed adversarial system. The desired new system is adversarial in that it is rooted in the idea that the criminal process is structured as a contest between the competing views of the defense and prosecution, and the case is ultimately resolved by a neutral adjudicator.

What really struck me was Professor Wangs explanation that because the new trial procedures were putting greater strain on this new adversarial system, expedited procedures were necessary to resolve cases rapidly.

And beyond a straightforward efficiency rationale, outside of the context of Taiwan, scholars have proposed that plea bargaining could actually encourage a new adversarial spirit because it is a party-controlled procedural form of resolving cases.
The problem is that the scenario that appears to be developing in Taiwan is a different one. Instead of enhancing robust interaction between the prosecution and defense, these trial-avoiding and trial-condensing procedures have created a separate track of expedited, prosecutor-dominated justice alongside the adversarial one. The vast majority of defendants see their cases decided at the prosecutor-controlled investigation stage or directed through an abbreviated adjudication stage with little activity by either the judge or defense.

This conclusion (to Ms Lewis’ intro) is relevant to our and indeed everyone’s debates about legal systems:

This observation is important not only to Taiwan, but also to other transitional jurisdictions by sounding a note of caution that focusing on the minority of cases in which defense lawyers spar with prosecutors in the courtroom may lead reformers to overlook how the overall reform package is increasingly channeling cases through very different processes.

They would welcome comments if anyone has any.

You can’t have people blurting out that sort of thing – it might bring the whole system into disrepute. The High Court was right to overturn it. His Honour should have maintained the respectable hypocrisy of his brethren and pretended to solemnly consider the “expert” testimony while actually ignoring it entirely.

There were a number of calamitous miscarriages of justice resulting from this when I was in France and my mind is thus impressionistically made up. Most particularly, although I may have some details wrong:

– a dozen or more adults in a small town were charged (not exactly ‘charged’ but a step which involved house arrest, attending court, formal criminal investigation, etc) solely on the later-contradicted testimony of one child and the zeal of a young-ish prosecuting magistrate (I would rather that those two words were grounds for impeachment not a job description).

– the ECHR annulled a conviction where the defence counsel (not a prominent player in French criminal proceedings) was not provided with the evidentiary material until about 24 hrs before the trial.

– La Cour de Cassation (High Court) annulled a (jury!) conviction for statutory rape on the grounds that the judge did not instruct the jury that the offence could not be committed if the girl was above the legal age (which apparently, bizarrely, she was).

Whilst the middle one in particular might not sound so improbable here, I know a number of legal aid lawyers and I can’t imagine any of them allowing the case to simply proceed to conviction, nor, where the delay was misconduct on behalf of the prosecution, would I expect the Judge to not adjourn. But where the Judge is allied to the prosecution, well, …

I would however prefer that judicial questioning be a last resort, if a more regularly resorted to one than it is now. I think it begins to erode the judicial role to be actually interogating the witness.

That isn’t really at odds with the study, though. The main point of the study (from my cursory read thus far) is what you suspect: that the civil law systems, as a result of something like what Nick refers to as the presumption of sovereign authority, are full of unecessary formalities which make the system prone to delay at the best of times and corruption at the worst (and even at the best).

Also, whilst I suspect that the greater role assigned to the judge does also increase the judge’s susceptibility to corruption in at least some environments, I suspect that Australia is not really one of them. Thus I believe that we could probably tolerate increased intervention with little risk of increased judicial corruption.

My opposition to civil law systems is less about case management (and in case opposition on that front is now, it seems, futile) but on the more substantive front. For example in bankruptcy a civil law court expects to have a real say in the precise outcomes for each class of stakeholders, as opposed to merely provide a specific procedural framework within which the parties may agree. I don’t see this as beneficial. Or, for example, in at least some civil law countries withholding tax relief is granted prospectively following lodgement of a request, as opposed to simply claimed by the taxpayer subject to post-facto audit. I consider the former situation vastly inferior.

That’s certainly a fascinating article and I’ll be sure to download a copy and read it. I have an open mind on the extent to which aspects of civil law might productively be adapted to improve our existing common law system. I certainly would not advocate a holus bolus conversion from a common law to a civil law system. That would be absurd, unworkable and ahistorical. Too many of our fundamental institutions of governance and our habits of mind are based, often unconsciously, on common law assumptions. However I have no doubt it’s possible to improve the efficiency, fairness and cheapness of common law justice by a range of measures including some borrowed from civil law systems.

I suspect that much if not all of the procedural rigidity and other deficiencies noted by the Lex Mundi study may flow from the fact that the law itself is rigidly code-based rather than common law precedent-based, and does not result from having a more inquisitorial,interventionist approach by judges to finding the truth. Judges in Australia have progressively been getting more interventionist and less “Sphinx-like” over the last few decades, and that’s a good thing IMO. Moreover, juries have gradually disappeared from civil matters (thankfully, given that most jurors had Buckley’s chance of understanding many of the complex evidentiary issues that arise), again something that makes our system look more like the civil law countries than it once did.

What do you actually think of the specific topic of my post? i.e. the desirability of hearing evidence from competing expert witnesses concurrently and allowing them to question each other as well as be questioned by opposing counsel (and, for that matter, by a more interventionist judge than is often still the common law norm)?

Contrary to the Lex Mundi findings, the AAT’s experience with this innovation is that it made

“the comparison of evidence easier and enhanced the decision-making process. In relation to its impact on the overall hearing time, the study revealed that the procedure led either to time savings or was neutral in most cases.”

Moreover, I don’t even know whether hearing expert witnesses concurrently is a borrowing from civil law jurisdictions or not. That’s not the point. It’s an innovation that seems to have promise.

I would certainly like to see the concurrent expert witnesses procedure used in criminal trials, having had the closely personal experience of seeing duelling psychiatrists give separate evidence about whether and to what extent the mongrel who murdered my then wife’s mother in front of my daughter was suffering from “diminished responsibility” caused by (alleged) alcoholism and prescription drug dependence. Fortunately the evidence of the defence “expert” was so patently deficient that the prosecutor had no difficulty demolishing it, and the prosecution psychs had pre-emptively discredited it anyway. But in cases where the seeming weight of expert evidence is more evenly balanced (to non-expert observers especially the tribunal of fact whether that’s a judge or jury), I think the opportunity to evaluate the experts “head to head” would greatly improve the quality of information on which to make the right decision.

Abstract:

In cooperation with Lex Mundi member law firms in 109 countries, we measure and describe the exact procedures used by litigants and courts to evict a tenant for non-payment of rent and to collect a bounced check. We use these data to construct an index of procedural formalism of dispute resolution for each country. We find that such formalism is systematically greater in civil than in common law countries, and is associated with higher expected duration of judicial proceedings, less consistency, less honesty, less fairness in judicial decisions, and more corruption. These results suggest that legal transplantation may have led to an inefficiently high level of procedural formalism, particularly in developing countries.

Cite: Simeon Djankov and others, ‘Courts: the Lex Mundi Project’, Quarterly Journal of Economics, May 2003.

On the larger point, I don’t think businesses’ penchant for common law jurisdictions is a product of strategic opportunism. You’d have evidence that this was the case if large firms did it only with regard to small firms, but they do it far more generally than that – including with similarly large firms, so if justice was cheaper and just as good elsewhere they’d take it.

I think the reason is that both common law and civil law systems have powerful strengths and weaknesses. Yet as far as I can see the strengths are not the other side of the coin of the weaknesses, they just happen to go with them.

I think the strengths of the common law system are as follows.
1) Precendents are stronger (I think) and certainty is probably the most prized value for a large civil litigant.
2) Common law has a broad presumption both of laissez faire and what amounts to something similar of maximising the extent to which a case can be decided according to the normal commercial practices and therefore expectations of the parties.

It’s weakness is its cost and delay.

The civil law’s great weakness (and I know far less about it so I may be wrong) is that it proceeds on the basis that law comes from above, from the sovereign. This can be a much less efficient engine of jurisprudence it seems to me, injecting the sovereign in where it may not be necessary, and deciding cases on principles based in codes, rather than principles gleaned from cases (in which the court will intervene reluctantly).

Against this the civil law has the advantage of far superior process but only in principle. From what reading I’ve done, it seems that at least in some jurisdictions, although civil procedure gives the right architecture for far superior (more efficient) civil procedure – in which the magistrate has complete power to graduate the extent of procedural effort as he determines the scope of the case and the helpfulness of each party in coming to an appropriate conclusion – in fact the civil law’s penchant for making and following the rules of the sovereign can make civil procedure in some countries pretty inefficient also.